ORLANDO GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Orlando Gonzalez was convicted of aggravated assault on a law enforcement officer, possession of cocaine, and improper exhibition of a firearm following a confrontation with police. The Third District Court of Appeal reversed and remanded for a new trial, finding that the prosecutor committed reversible error by asking improper questions during cross-examination that suggested Gonzalez was hired as a hit man, despite no evidentiary support for such questioning.
The court held that the prosecutor's questioning was impermissible because it was not relevant to the crimes charged and was not supported by any evidence presented at trial. The error was so inflammatory that it destroyed the appellant's right to a fair trial and constituted reversible error.
[1] A prosecutor commits reversible error by asking a defendant whether they were hired to "get rid of" another person when no evidence supports such a claim and the question…
[2] Prosecutorial questioning must be based on evidence presented at trial and should avoid unsupported insinuations or innuendos.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In proving a set of facts, the prosecutor should avoid innuendos or insinuations and, instead, should rely on the testimony of the witnesses and the facts established in evidence.”
Establishes the standard for prosecutorial conduct during cross-examination
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn April 1989, police responded to a report of an abduction at gunpoint. Upon arrival, officers observed the alleged victim flee the vehicle and saw G…
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PER CURIAM.
Orlando Gonzalez, the appellant, appeals his convictions of aggravated assault on a law enforcement officer, possession of cocaine, and improper exhibition of a firearm. In April of 1989, police responded to a report that one male abducted another at gunpoint, forcing the other male into an automobile and then driving off. Upon approaching the vehicle, a police officer saw the alleged victim flee from the passenger side of the vehicle. The officer then observed the appellant exit the driver’s side of the car and point a handgun at the officer. According to the officer, the appellant fired one shot in his direction, but did not strike him. The appellant and the alleged victim were both immediately arrested. The appellant gave a statement, after his Miranda rights were read to him, in which he maintained that he was the innocent victim and that the other male was the abductor. According to the appellant, he wrestled the gun away from the alleged victim just before the police arrived and then he pulled the handgun out of the car to throw it on the ground in order to avoid violating his probation. The appellant was formally charged with: (1) attempted first degree murder on a law enforcement officer; (2) unlawful display of a firearm while in commission of a felony; (3) possession of cocaine; and (4) improper exhibition of a firearm. The case proceeded to a jury trial.
On cross-examination, the prosecutor asked the appellant whether it was a fact that he was hired to “get rid of” the alleged victim. The appellant denied this suggestion. Defense counsel’s objection was overruled and a motion for mistrial was denied.
Although the appellant raises several issues on appeal, we need only discuss one, to-wit: whether the prosecuting attorney committed reversible error by asking the appellant if he was hired to “get rid of” the alleged victim where no evidence was presented to support such questioning. We hold that this type of questioning was impermissible because the questioning was not relevant to the crimes charged and, furthermore, certainly was not supported by the evidence presented at trial.
In proving a set of facts, the prosecutor should avoid innuendos or insinuations and, instead, should rely on the testimony of the witnesses and the facts established in evidence. Bennett v. State, 316 So. 2d 41 (Fla.1975). In the present case, the prosecutor’s suggestion that the appellant was hired to “get rid of” the alleged victim was highly prejudicial and completely irrelevant to the crimes charged or the evidence presented. See, e.g., Shorter v. State, 532 So. 2d 1110 (Fla. 3d DCA 1988); Harris v. State, 447 So. 2d 1020 (Fla. 3d DCA 1984); Malcolm v. State, 415 So. 2d 891 (Fla. 3d DCA 1982); Glantz v. State, 343 So. 2d 88 (Fla. 3d DCA 1977). We find this error to be so inflammatory that it destroyed the appellant’s right to a fair trial.
The State argues that the trial court did not err in allowing this questioning because the appellant had opened the door on direct examination. We find the opposite to be the case.
Our review of the record does not reveal the appellant opening the door to this impermissible questioning. There was nothing in the record to support the prosecutor’s contentions and suggestions of a “hit-man” status. Accordingly, we reverse and remand for a new trial. Reversal on this point renders moot any discussion of the remaining issues raised by the appellant.
Reversed and remanded.
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Cited By
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Eraeta v. State, 575 So. 2d 206 (Fla. 4th DCA 1991)…d murder of a law enforcement officer engaged in the lawful performance of his duties. See § 784.07(3), Fla.Stat. (Supp.1988). Contrary to the state’s assertion that section 784.07(3) did not create a new crime, the defendant in Gonzalez v. State, 572 So. 2d 999 (Fla. 3d DCA 1990), was formally charged with attempted first-degree murder of a law enforcement officer and convicted of aggravated assault on a law enforcement officer. Furthermore, appellant responds that even if section 784.07(3) is construed…
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Turchiaro v. State, 697 So. 2d 925 (Fla. 2d DCA 1997)…ly implied that appellant had a propensity for violence. In a trial for robbery, we cannot say that such questioning was not prejudicial to appellant’s right to a fair trial. See Lawson v. State, 651 So. 2d 713 (Fla. 2d DCA 1995); Gonzalez v. State, 572 So. 2d 999 (Fla. 3d DCA 1990). Accordingly, we reverse and remand for a new trial. DANAHY, A.C.J., and THREADGILL, J., concur.…
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Corrao v. State, 79 So. 3d 940 (Fla. 1st DCA 2012)…was directly involved in a similar crime”); Holmes v. State, 757 So. 2d 620, 621-22 (Fla. 3d DCA 2000) (deeming prosecutor’s “tell[ing an inadmissible fact to] the jury through a leading question” improper and highly prejudicial); Gonzalez v. State, 572 So. 2d 999, 1000 (Fla. 3d DCA 1990) (reversing because the prosecutor asked the defendant “whether it was a fact that he was hired to ‘get rid of the alleged [abduction] victim”). But cf. Straight v. State, 397 So. 2d 903, 908-09 (Fla.1981) (“inconceivable” th…
Authorities Cited
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Anderson Beck v. State, 415 So. 2d 891 (Fla. 3d DCA 1982)
- Shorter v. State, 532 So. 2d 1110 (Fla. 3d DCA 1988)
- Glantz v. State, 343 So. 2d 88 (Fla. 3d DCA 1977)
- Harris v. State, 447 So. 2d 1020 (Fla. 3d DCA 1984)